Soon after I was appointed to the Arizona Court of Appeals in 2000, I attended a two-week session for new appellate court judges at the National Judicial College in Reno, Nevada. Among the speakers was former Tennessee Supreme Court Justice Penny White, who spoke about the need to consider how language used in opinions is understood by the public. She related her experience of losing her retention election in 1996 in the wake of the Tennessee Supreme Court’s controversial decision reversing a death sentence. Justice White pointed out that some language used in the opinion—for example, stating that the murder of a grandmother wasn’t “cruel”—was misunderstood and prompted misplaced outrage. Justice White’s message was to be careful with word choices. My takeaway was that Justices could be fired for doing their jobs if the public is unhappy with a single opinion. Having just surrendered a lucrative law practice to take the bench, I found Justice White’s cautionary tale chilling. As the years progressed and I found myself deciding publicly controversial cases, the ghost of Justice White’s retention loss occasionally hovered in my peripheral vision, taking more definite shape at times—for example when three Iowa Supreme Court Justices lost their retention elections in 2010 following a divisive same-sex marriage decision. But whenever that menace reappeared, I consciously, and hopefully successfully, banished it by considering the importance of adhering to my oath of office, preserving my integrity, and reminding myself that the worst thing that could happen is that I would be voted out of office and forced to return to the practice of law with my head held high.
{"title":"The Influence of Re-Selection on Independent Decision Making in State Supreme Courts","authors":"Ann Timmer","doi":"10.2139/ssrn.3243498","DOIUrl":"https://doi.org/10.2139/ssrn.3243498","url":null,"abstract":"Soon after I was appointed to the Arizona Court of Appeals in 2000, I attended a two-week session for new appellate court judges at the National Judicial College in Reno, Nevada. Among the speakers was former Tennessee Supreme Court Justice Penny White, who spoke about the need to consider how language used in opinions is understood by the public. She related her experience of losing her retention election in 1996 in the wake of the Tennessee Supreme Court’s controversial decision reversing a death sentence. Justice White pointed out that some language used in the opinion—for example, stating that the murder of a grandmother wasn’t “cruel”—was misunderstood and prompted misplaced outrage. Justice White’s message was to be careful with word choices. My takeaway was that Justices could be fired for doing their jobs if the public is unhappy with a single opinion. Having just surrendered a lucrative law practice to take the bench, I found Justice White’s cautionary tale chilling. As the years progressed and I found myself deciding publicly controversial cases, the ghost of Justice White’s retention loss occasionally hovered in my peripheral vision, taking more definite shape at times—for example when three Iowa Supreme Court Justices lost their retention elections in 2010 following a divisive same-sex marriage decision. But whenever that menace reappeared, I consciously, and hopefully successfully, banished it by considering the importance of adhering to my oath of office, preserving my integrity, and reminding myself that the worst thing that could happen is that I would be voted out of office and forced to return to the practice of law with my head held high.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"92 1","pages":"27-62"},"PeriodicalIF":0.0,"publicationDate":"2019-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82676268","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The appeal of regarding certain statutes as having constitutional status is discussed. The possibility that certain statutes may lay claim to expressing fundamental law in a way that entitles them to be included within the range of material relevant to constitutional interpretation is examined.
{"title":"Voting Rights and the “Statutory Constitution”","authors":"P. Shane","doi":"10.2307/1192097","DOIUrl":"https://doi.org/10.2307/1192097","url":null,"abstract":"The appeal of regarding certain statutes as having constitutional status is discussed. The possibility that certain statutes may lay claim to expressing fundamental law in a way that entitles them to be included within the range of material relevant to constitutional interpretation is examined.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"25 1","pages":"243-271"},"PeriodicalIF":0.0,"publicationDate":"2018-12-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82275180","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article explores transgender inclusion within adult recreational women’s leagues by using the example of the Mary Vazquez Women’s Softball League (MVWSL), in Northampton, Massachusetts. A MVWSL policy addressing transgender inclusion became necessary due to a noticeable increase in gender-identity diversity. The resultant policy respects the league’s core lesbian constituency by providing individuals with the freedom to acknowledge openly a gender identity that has or is evolving from lesbian to something else, and reflects the league’s founding feminist principles by refusing to define for others the suitability of a women’s community. The Author demonstrates the successful creation of a policy based on internal principles and values rather than external ones, and defines inclusion and prohibits discrimination based on gender identity. This application can be applied in other sporting contexts that separate players by sex to determine the values-driven process of defining who is eligible in each category or, when separation is necessary, to promote the objectives of the leagues, particularly when such a policy is absent from public law.
{"title":"Challenging Gender in Single-Sex Spaces: Lessons from a Feminist Softball League","authors":"Erin E. Buzuvis","doi":"10.31228/osf.io/38cwn","DOIUrl":"https://doi.org/10.31228/osf.io/38cwn","url":null,"abstract":"This Article explores transgender inclusion within adult recreational women’s leagues by using the example of the Mary Vazquez Women’s Softball League (MVWSL), in Northampton, Massachusetts. A MVWSL policy addressing transgender inclusion became necessary due to a noticeable increase in gender-identity diversity. The resultant policy respects the league’s core lesbian constituency by providing individuals with the freedom to acknowledge openly a gender identity that has or is evolving from lesbian to something else, and reflects the league’s founding feminist principles by refusing to define for others the suitability of a women’s community. \u0000The Author demonstrates the successful creation of a policy based on internal principles and values rather than external ones, and defines inclusion and prohibits discrimination based on gender identity. This application can be applied in other sporting contexts that separate players by sex to determine the values-driven process of defining who is eligible in each category or, when separation is necessary, to promote the objectives of the leagues, particularly when such a policy is absent from public law.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"14 1","pages":"155-172"},"PeriodicalIF":0.0,"publicationDate":"2017-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75453219","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Several recent studies have found a positive, statistically significant correlation between ratification of human rights treaties and respect for human rights. Some commentators have interpreted these results as evidence of the causal effect of international human rights law on human rights outcomes. We revisit this debate and present evidence that for two treaties — the Convention on Elimination of Discrimination Against Women and the Convention Against Torture — these results disappear once time trends are taken into account. Our evidence suggests that recent improvements in human rights are attributable to long running trends that pre-date the emergence of the relevant treaty regimes.
{"title":"Treaties and Human Rights: The Role of Long-Term Trends","authors":"Adam Chilton, E. Posner","doi":"10.2139/SSRN.2815272","DOIUrl":"https://doi.org/10.2139/SSRN.2815272","url":null,"abstract":"Several recent studies have found a positive, statistically significant correlation between ratification of human rights treaties and respect for human rights. Some commentators have interpreted these results as evidence of the causal effect of international human rights law on human rights outcomes. We revisit this debate and present evidence that for two treaties — the Convention on Elimination of Discrimination Against Women and the Convention Against Torture — these results disappear once time trends are taken into account. Our evidence suggests that recent improvements in human rights are attributable to long running trends that pre-date the emergence of the relevant treaty regimes.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"NS25 10 1","pages":"1-30"},"PeriodicalIF":0.0,"publicationDate":"2016-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77831131","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The current judicial treatment of the Federal Arbitration Act1 (FAA) is an embarrassment to a Court whose majority is supposed to be leading a federalism revival. The Court's 1984 decision in Southland Corp. v. Keating, held that the FAA is substantive federal law that preempts state laws regulating arbitration agreements. The Court thereby transformed a quaint, sixty-year-old procedural statute into "a permanent, unauthorized eviction of state-court power to adjudicate a potentially large class of disputes," as well as an eviction of state lawmaking power over the traditional state domain of contract law. Ignoring contrary congressional intent, the Southland decision is wrong as a matter of black-letter preemption doctrine, and it imposes a very high cost to the federalism values espoused by the Court in its recent federalism jurisprudence. Moreover, there is no significant federal interest at stake in a state's policy choice between opening its courts to litigants or compelling them to arbitrate pursuant to private contracts. The article argues that Southland cannot be justified on alternative theories, such as "dynamic statutory interpretation" or statutory stare decisis, and should be overruled.
{"title":"Correcting Federalism Mistakes in Statutory Interpretation: The Supreme Court and the Federal Arbitration Act","authors":"David S. Schwartz","doi":"10.2139/SSRN.2779716","DOIUrl":"https://doi.org/10.2139/SSRN.2779716","url":null,"abstract":"The current judicial treatment of the Federal Arbitration Act1 (FAA) is an embarrassment to a Court whose majority is supposed to be leading a federalism revival. The Court's 1984 decision in Southland Corp. v. Keating, held that the FAA is substantive federal law that preempts state laws regulating arbitration agreements. The Court thereby transformed a quaint, sixty-year-old procedural statute into \"a permanent, unauthorized eviction of state-court power to adjudicate a potentially large class of disputes,\" as well as an eviction of state lawmaking power over the traditional state domain of contract law. Ignoring contrary congressional intent, the Southland decision is wrong as a matter of black-letter preemption doctrine, and it imposes a very high cost to the federalism values espoused by the Court in its recent federalism jurisprudence. Moreover, there is no significant federal interest at stake in a state's policy choice between opening its courts to litigants or compelling them to arbitrate pursuant to private contracts. The article argues that Southland cannot be justified on alternative theories, such as \"dynamic statutory interpretation\" or statutory stare decisis, and should be overruled.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"97 1","pages":"5-54"},"PeriodicalIF":0.0,"publicationDate":"2016-05-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72528015","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper explores the relationship of the law clerk to the judge and why judges decide to make their term clerks career clerks or switch from career clerks back to term clerks. In exploring this issue, 26 judges were interviewed and provided a broad set of reasons both to have a career clerk or to stick with term clerks. The decision to hire a career clerk rests on serendipitous events while the choice to switch back to term clerks is deliberate. In the game of baseball the manager in the World Series has to change tactics when considering how to use the designated hitter. The district judge hiring law clerks has to consider how that person is to be used, as a designated hitter, a pinch hitter or a bat boy. Experience, wisdom, judgment, maturity, and even humility -- aspirational qualities for judges -- are not often found in new law clerks. Delegating the judge's responsibilities to such a person creates risks for the system.
{"title":"Designated Hitters, Pinch Hitters, and Bat Boys: Judges Dealing with Judgment and Inexperience, Career Clerks or Term Clerks","authors":"Don Molloy","doi":"10.2139/SSRN.2822430","DOIUrl":"https://doi.org/10.2139/SSRN.2822430","url":null,"abstract":"This paper explores the relationship of the law clerk to the judge and why judges decide to make their term clerks career clerks or switch from career clerks back to term clerks. In exploring this issue, 26 judges were interviewed and provided a broad set of reasons both to have a career clerk or to stick with term clerks. The decision to hire a career clerk rests on serendipitous events while the choice to switch back to term clerks is deliberate. In the game of baseball the manager in the World Series has to change tactics when considering how to use the designated hitter. The district judge hiring law clerks has to consider how that person is to be used, as a designated hitter, a pinch hitter or a bat boy. Experience, wisdom, judgment, maturity, and even humility -- aspirational qualities for judges -- are not often found in new law clerks. Delegating the judge's responsibilities to such a person creates risks for the system.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"23 1","pages":"133-155"},"PeriodicalIF":0.0,"publicationDate":"2016-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79344578","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article provides a pioneering empirical analysis of the emergence and transformation of the Caribbean Court of Justice (CCJ). The article analyses both the protracted process of negotiating a common court for the Caribbean and its subsequent institutionalization as the CCJ. The court eventually created in 2005 was uniquely vested with a double jurisdiction: original jurisdiction over Caribbean community law, notably the Revised Treaty of Chaguaramas (RTC) (2001), and appellate jurisdiction over other civil and criminal matters. We argue that this double competence is symptomatic of the complex socio-political context and transformation of which it is part. While the CCJ’s original jurisdiction over the RTC has been the background to a new more legalized process of Caribbean integration under the CARICOM, in its appellate function the Court is now gradually repatriating to the Caribbean the development and control over the common law from the Judicial Committee of the Privy Council (Privy Council/JCPC) in London which until recently remained the last court of appeals for civil and criminal cases from the Caribbean. Using unique data collected on the ground, in both our legal and sociological analysis of the development of the CCJ since 2005, we show how this combination of globalization and latter-day decolonization continued to have a fundamental impact on the Court and its authority in the region. We moreover demonstrate how the Court has changed from initially deploying a sort of Legal Diplomacy (Madsen 2011) to now increasingly seeking to legitimize its practices in providing justice to the Caribbean people. The latter has helped the CCJ expand its group of interlocutors significantly beyond the initially rather narrow set of insiders involved in litigation before the Court as well as expanded its authority.
{"title":"Between Community Law and Common Law: The Rise of the Caribbean Court of Justice at the Intersection of Regional Integration and Post-Colonial Legacies","authors":"Salvatore Caserta, M. Madsen","doi":"10.2139/SSRN.2528978","DOIUrl":"https://doi.org/10.2139/SSRN.2528978","url":null,"abstract":"This article provides a pioneering empirical analysis of the emergence and transformation of the Caribbean Court of Justice (CCJ). The article analyses both the protracted process of negotiating a common court for the Caribbean and its subsequent institutionalization as the CCJ. The court eventually created in 2005 was uniquely vested with a double jurisdiction: original jurisdiction over Caribbean community law, notably the Revised Treaty of Chaguaramas (RTC) (2001), and appellate jurisdiction over other civil and criminal matters. We argue that this double competence is symptomatic of the complex socio-political context and transformation of which it is part. While the CCJ’s original jurisdiction over the RTC has been the background to a new more legalized process of Caribbean integration under the CARICOM, in its appellate function the Court is now gradually repatriating to the Caribbean the development and control over the common law from the Judicial Committee of the Privy Council (Privy Council/JCPC) in London which until recently remained the last court of appeals for civil and criminal cases from the Caribbean. Using unique data collected on the ground, in both our legal and sociological analysis of the development of the CCJ since 2005, we show how this combination of globalization and latter-day decolonization continued to have a fundamental impact on the Court and its authority in the region. We moreover demonstrate how the Court has changed from initially deploying a sort of Legal Diplomacy (Madsen 2011) to now increasingly seeking to legitimize its practices in providing justice to the Caribbean people. The latter has helped the CCJ expand its group of interlocutors significantly beyond the initially rather narrow set of insiders involved in litigation before the Court as well as expanded its authority.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"51 1","pages":"89-115"},"PeriodicalIF":0.0,"publicationDate":"2016-03-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73802903","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
I INTRODUCTION It is a pleasure to comment on the fine institutional studies in this issue by Gillian Metzger and David Zaring. (1) Professor Metzger explores the many ways in which financial regulation, as reflected in the regulatory functions of the Federal Reserve (the Fed), differs from mainstream administrative law, as represented by the Environmental Protection Agency (EPA). She describes the historical roots of the divergence, explains how it has persisted over time, and offers some intriguing thoughts about the possibilities for convergence in the future. Professor Zaring paints a fascinating portrait of the Federal Open Market Committee (FOMC), the entity within the Fed that determines national monetary policy. Drawing upon transcripts of FOMC meetings during the Alan Greenspan era, he concludes that internal custom provides a more important constraint on the Committee's behavior than formal administrative law does. A common theme of both the Metzger and Zaring studies is that financial regulators differ from ordinary administrative agencies on the familiar dimensions of accountability and transparency. Both the Fed and the FOMC are highly independent, effectively immune from presidential oversight, and largely free to ignore Congress because they are funded out of their own operations. They operate under vague statutory mandates that confer enormous discretion. There is no public participation in the Fed's oversight of banks or the FOMC's setting of monetary policy. As Professor Zaring notes, judicial review is almost completely absent. (2) Moreover, most of the critical functions performed by the Fed and the FOMC are shrouded in secrecy. Meetings of the Fed and the FOMC are closed to the public, the results of bank examinations are confidential, the monetary policy directives of the FOMC are not disclosed until they are no longer in effect, and the transcripts of these meetings remain under wraps for five years. What is missing from both studies is the identification of a key attribute of financial regulation that helps explain these departures from traditional administrative law. Financial regulation concerns activity that has very low exit costs. What is being regulated is money, money substitutes (like money market funds and short-term repurchase agreements), and other financial assets, such as bonds, stocks, and derivatives. Financial regulation is concerned with the ultimate in slippery stuff; financial instruments are like quicksilver that can wiggle out of your grasp at a moment's notice. (3) This attribute exerts a pervasive influence on the nature of financial regulation, rendering it difficult in many circumstances to adopt ordinary norms of administrative law. There seems to be no prospect of this changing in the foreseeable future, and therefore it is unlikely that a complete convergence between financial regulation and other forms of administrative law will occur. II EXIT COSTS AND THE NATURE OF REGULATION Ordinary adminis
{"title":"A Comment on Metzger and Zaring: The Quicksilver Problem","authors":"T. Merrill","doi":"10.7916/D8GH9HKS","DOIUrl":"https://doi.org/10.7916/D8GH9HKS","url":null,"abstract":"I INTRODUCTION It is a pleasure to comment on the fine institutional studies in this issue by Gillian Metzger and David Zaring. (1) Professor Metzger explores the many ways in which financial regulation, as reflected in the regulatory functions of the Federal Reserve (the Fed), differs from mainstream administrative law, as represented by the Environmental Protection Agency (EPA). She describes the historical roots of the divergence, explains how it has persisted over time, and offers some intriguing thoughts about the possibilities for convergence in the future. Professor Zaring paints a fascinating portrait of the Federal Open Market Committee (FOMC), the entity within the Fed that determines national monetary policy. Drawing upon transcripts of FOMC meetings during the Alan Greenspan era, he concludes that internal custom provides a more important constraint on the Committee's behavior than formal administrative law does. A common theme of both the Metzger and Zaring studies is that financial regulators differ from ordinary administrative agencies on the familiar dimensions of accountability and transparency. Both the Fed and the FOMC are highly independent, effectively immune from presidential oversight, and largely free to ignore Congress because they are funded out of their own operations. They operate under vague statutory mandates that confer enormous discretion. There is no public participation in the Fed's oversight of banks or the FOMC's setting of monetary policy. As Professor Zaring notes, judicial review is almost completely absent. (2) Moreover, most of the critical functions performed by the Fed and the FOMC are shrouded in secrecy. Meetings of the Fed and the FOMC are closed to the public, the results of bank examinations are confidential, the monetary policy directives of the FOMC are not disclosed until they are no longer in effect, and the transcripts of these meetings remain under wraps for five years. What is missing from both studies is the identification of a key attribute of financial regulation that helps explain these departures from traditional administrative law. Financial regulation concerns activity that has very low exit costs. What is being regulated is money, money substitutes (like money market funds and short-term repurchase agreements), and other financial assets, such as bonds, stocks, and derivatives. Financial regulation is concerned with the ultimate in slippery stuff; financial instruments are like quicksilver that can wiggle out of your grasp at a moment's notice. (3) This attribute exerts a pervasive influence on the nature of financial regulation, rendering it difficult in many circumstances to adopt ordinary norms of administrative law. There seems to be no prospect of this changing in the foreseeable future, and therefore it is unlikely that a complete convergence between financial regulation and other forms of administrative law will occur. II EXIT COSTS AND THE NATURE OF REGULATION Ordinary adminis","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"35 1","pages":"189-204"},"PeriodicalIF":0.0,"publicationDate":"2015-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81063872","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article examines the changing authority of the European Court of Human Rights (ECtHR) since its establishment in 1959. The first part focuses on the particular challenges the Cold War period posed for the Court and its constituencies. A second part considers the post-Cold War period in which the Court was fundamentally transformed from an ad hoc tribunal to becoming a permanent international Court for some 800 million Europeans. It argues that it was not until the mid- to late 1970s that the authority of the ECtHR expanded beyond a rather narrow group of litigants. The very limited case-load of the first fifteen years of operation made the Court of little or no importance to states other than those immediately involved in the scattered cases. Over time the ECtHR developed extensive authority, becoming a de facto supreme court of human rights in Europe. The European Court of Human Rights had a steady and growing business, and despite occasional counter-reactions to its expanding jurisprudence member states generally comply with its judgments. However, in recent years the European Court has come under repeated attack by new and old member alike, and especially the United Kingdom and Russia. It argues in conclusion that in recent years the authority of the Court has become increasingly uneven and partial and, in light of the 2012 Brighton Declaration, perhaps it has even started shrinking.
{"title":"The Challenging Authority of the European Court of Human Rights: From Cold War Legal Diplomacy to the Brighton Declaration and Backlash","authors":"M. Madsen","doi":"10.2139/SSRN.2588471","DOIUrl":"https://doi.org/10.2139/SSRN.2588471","url":null,"abstract":"This article examines the changing authority of the European Court of Human Rights (ECtHR) since its establishment in 1959. The first part focuses on the particular challenges the Cold War period posed for the Court and its constituencies. A second part considers the post-Cold War period in which the Court was fundamentally transformed from an ad hoc tribunal to becoming a permanent international Court for some 800 million Europeans. It argues that it was not until the mid- to late 1970s that the authority of the ECtHR expanded beyond a rather narrow group of litigants. The very limited case-load of the first fifteen years of operation made the Court of little or no importance to states other than those immediately involved in the scattered cases. Over time the ECtHR developed extensive authority, becoming a de facto supreme court of human rights in Europe. The European Court of Human Rights had a steady and growing business, and despite occasional counter-reactions to its expanding jurisprudence member states generally comply with its judgments. However, in recent years the European Court has come under repeated attack by new and old member alike, and especially the United Kingdom and Russia. It argues in conclusion that in recent years the authority of the Court has become increasingly uneven and partial and, in light of the 2012 Brighton Declaration, perhaps it has even started shrinking.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"16 1","pages":"141-178"},"PeriodicalIF":0.0,"publicationDate":"2015-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85676909","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the context of a special issue on ‘practices’ at the International Criminal Court, this article focuses on the practice of representation, and in particular on the practice of representing victims. As political and social theorists such as Pitkin and Bourdieu have argued with respect to politics, representation does not merely reflect reality, it is constitutive of it. In the ICC, two practices of victim representation have been prevalent. The first is the rather novel and widely welcomed practice of representing victims as participants in ICC proceedings. The second is the older practice of the discursive invocation of victims as the telos of international criminal law. But these two practices lead in different directions. Victim participation in court proceedings has led to the juridification of victimhood — the legal categorisation of victims — and as a result of this juridification, very few individuals are actually personally represented in the Court’s proceedings. The discursive invocation of victims as the telos of the Court’s work has created a deity-like and seemingly sovereign entity — ‘The Victims’ — that transcends all actual victims and corresponds to no individual victim in their particularity. The result of the two practices is an increasing gap between the limited role that victims play in international criminal proceedings due to the juridification of victimhood and the continued presentation of ‘The Victims’ as the raison d’etre of international criminal law. The overdetermined presence of the figure of ‘The Victims’ as a rhetorical construct obscures the representative challenges faced by conflict-affected individuals in accessing the form of justice that is practiced in their (abstract) name.
{"title":"Representational Practices at the International Criminal Court: The Gap between Juridified and Abstract Victimhood","authors":"S. Kendall, S. Nouwen","doi":"10.2139/SSRN.2313094","DOIUrl":"https://doi.org/10.2139/SSRN.2313094","url":null,"abstract":"In the context of a special issue on ‘practices’ at the International Criminal Court, this article focuses on the practice of representation, and in particular on the practice of representing victims. As political and social theorists such as Pitkin and Bourdieu have argued with respect to politics, representation does not merely reflect reality, it is constitutive of it. In the ICC, two practices of victim representation have been prevalent. The first is the rather novel and widely welcomed practice of representing victims as participants in ICC proceedings. The second is the older practice of the discursive invocation of victims as the telos of international criminal law. But these two practices lead in different directions. Victim participation in court proceedings has led to the juridification of victimhood — the legal categorisation of victims — and as a result of this juridification, very few individuals are actually personally represented in the Court’s proceedings. The discursive invocation of victims as the telos of the Court’s work has created a deity-like and seemingly sovereign entity — ‘The Victims’ — that transcends all actual victims and corresponds to no individual victim in their particularity. The result of the two practices is an increasing gap between the limited role that victims play in international criminal proceedings due to the juridification of victimhood and the continued presentation of ‘The Victims’ as the raison d’etre of international criminal law. The overdetermined presence of the figure of ‘The Victims’ as a rhetorical construct obscures the representative challenges faced by conflict-affected individuals in accessing the form of justice that is practiced in their (abstract) name.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"45 1","pages":"235-262"},"PeriodicalIF":0.0,"publicationDate":"2013-08-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80655097","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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